d. Restoration of Status in Quo [§ 340] p 928 V. DEVISE OR TESTAMENTARY DISPOSITION [§§ 341-342] p 929 1. In General [§ 341] p 929 2. Devise to Husband or Wife and Children [§ 3412] p 929 VI. ABANDONMENT, WAIVER, OR FORFEITURE [§§ 343-412] p 931 B. Dissolution of Family Relationship [§§ 344-349] p 931 1. In General [§ 344] p 931 2. Desertion [§ 345] p 933 3. Divorce [§§ 346-348] p 934 a. Effect on Husband's Right [§ 346] p 934 b. Effect on Wife's Right [§ 347] p 934 c. Effect on Rights of Children [§ 348] p 935 4. Separation by Agreement [§ 349] p 935 C. Abandonment of Homestead [ 350-3802] p 935 1. In General [§ 350] p 935 2. Removal from Premises [§§ 351-364] p 936 a. In General [§ 351] p 936 b. Removal without Intent to Return [§§ 352-354] p 936 (1) In General [§ 352] p 936 (2) Removal to Another State [§ 353] p 937 (3) Removal without Acquiring New Homestead [§ 354] p 938 c. Removal with Intent to Return [§§ 355-363] p 938 (1) In General [§ 355] p 938 (2) Absence Due to Necessity [§ 356] p 939 (3) Absence for Business Purposes [§ 357] p 940 (4) Absence for Education of Children [§ 358] p 941 (5) Absence on Account of Health [§ 359] p 941 (6) Filing Claim or Notice on Removal [§ 360] p 941 (7) Character of Intent [§§ 361-362] p 942 (a) In General [§ 361] p 942 (b) Continuing Intent [§ 362] p 943 (8) Time of Forming Intent [§ 363] p 943 [29 C. J.] 777 d. Effect of Intent to Remove without Actual Removal [§ 364] p 943 3. Removal and Conveyance [§ 365] p 943 4. Offer or Unexecuted Intention to Sell [§ 366] p 944 5. Acquisition of New Homestead [§ 367] p 944 6. Change in Character or Use of Property [§ 368] p 945 7. Declaration of Abandonment [§ 369] p 945 8. Sale and Conveyance [§§ 370-374] p 945 a. In General [§ 370] p 945 b. Conveyance to Wife or for Her Benefit [§ 371] p 946 c. Conveyance as Security for Debt [§ 372] p 947 d. Invalid or Defective Deed [§ 373] p 947 e. Parol Sale Accompanied by Delivery of Possession [§ 374] p 947 9. Lease [ 375-376] p 947 a. In General [§ 375] p 947 b. Lease of Portion of Premises [§ 376] p 948 10. Use of Former Tract in Connection with New Residence Tract [§ 377] p 949 11. Miscellaneous Acts of Abandonment [§ 378] p 949 12. Abandonment of Business Homestead [§ 379] p 949 13. Power of Husband to Abandon Homestead without Wife's Consent [§§ 380-3802] P 950 a. View That He May [6 3801 050 b. View That He Cannot [ 3802] p 951 D. Waiver [§§ 381-388] p 951 1. In General [§ 381] p 951 2. By Whom Made [§ 382] p 952 3. How Waived [§§ 383-388] p 952 a. In General [§ 383] p 952 b. By Contract [§§ 384-386] p 952 (1) In General [§ 384] p 952 (2) Mortgage Waiving Exemption [§ 385] p 953 (3) Joinder of Husband and Wife [§ 386] p 954 c. Implied Waiver [§§ 387-388] p 954 (1) In General [§ 387] p 954 For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. (2) Failure to Object or Consent to Levy and Sale [§ 388] p 955 2. Special Waiver [§§ 390-3902] p 956 a. Rights of Person or Creditor Favored [§ 390] p 956 b. Rights of Other Creditors [§ 3902] p 956 F. Estoppel to Claim Homestead [§§ 391-401] p 957 1. By Deed [§ 391] p 957 2. By Record [§ 392] p 957 3. By Conduct [§§ 393-399] p 958 a. In General [§ 393] p 958 b. Inducing Belief That Homestead Has Been Abandoned [§ 394] p 958 c. Change of Selection [§§ 395-396] p 958 (1) After Encumbering Other Lands [§ 395] p 958 (2) After Representation Inducing Dealings [§ 396] p 959 d. Disclaimer [§ 397] p 959 e. Recognition of Superior Title [§ 398] p 959 f. Miscellaneous [§ 399] p 959 4. By Position Taken or Admissions in Judicial Proceedings [400] p 960 5. Estoppel of Either Spouse by Acts of the Other [§ 401] p 960 G. Forfeiture [§ 402] p 961 H. Evidence [$$ 403-410] p 961 1. Presumptions and Burden of Proof [$ 403] p 961 2. Admissibility [§ 404] p 962 3. Weight and Sufficiency [$$ 405-410] p 963 a. In General [§ 405] p 963 b. Declarations [§ 406] p 963 c. Duration of Absence [§ 407] p 963 d. Acceptance of Lease of Premises [§ 408] p 964 e. Voting at Place Other than Where Homestead Is Located [§ 409] p 964 I. Findings [§ 411] p 965 J. Questions for Jury [§ 412] p 965 VII. PROTECTION AND ENFORCEMENT OR RIGHTS [§§ 413-469] p 966 A. Process or Other Proceedings against Which Exemption May Be Allowed [§§ 413-417] p 966 1. In General [§ 413] p 966 2. Levy of Attachment or Execution [§ 414] p 966 3. Execution and Judicial Sales [§§ 415-417] p 967 b. Foreclosure Proceedings [§ 46] p 967 B. Establishment of Right [$$ 418-443] p 968 1. In General [§§ 418-419] p 968 a. What Law Governs [§ 418] p 968 b. Duty of Officer Making Levy [§ 419] p 968 2. Claim of Homestead [§§ 420-426] p 969 a. Necessity of Claim [§ 420] p 969 b. Persons Who May Make Claim [§ 421] p 970 c. Time for Making Claim [§ 422] p 970 d. Form, Requisites, and Sufficiency of Claim [§ 423] p 971 e. Notice and Filing of Claim [§ 424] p 971 f. Contest and Determination of Claim [§§ 425-426] p 972 (1) In General [§ 425] p 972 (2) Notice [ 426] p 972 3. Allotment and Appraisal [§§ 427-437] p 972 a. Necessity [§ 427] p 972 b. Jurisdiction [§ 428] p 973 c. Selection, Appointment, and Competency of Appraisers [§ 429] p 973 d. Powers, Duties, and Determination of Appraisers [§ 430] p 974 e. Report and Proceedings Thereon [§§ 431-434] p 975 (1) In General [§ 431] p 975 (2) Formal Defects and Irregularities [§ 432] p 975 (3) Approval, Setting Aside, and Reappraisal [§§ 433-433] p 976 (b) Hearing on Objections [§ 4332] p 976 (c) Effect of Approval or of Setting Aside Reappraisement [§ 433] p 977 (4) Review [§ 434] p 977 f. Operation and Effect [§§ 435-436] p 977 (1) In General [§ 435] p 977 (2) Collateral Attack [§ 436] p 977 g. Claiming Successive Exemptions [§ 437] p 978 4. Disposition of Property and Rights of Purchasers [§§ 438-443] p 978 a. In General [§ 438] p 978 b. Sale of Property Subject to Homestead Right [§ 439] p 978 [29 O. J.] 779 c. Retaining Property beyond Exemption on Payment of Excess [§ 440] p 979 d. Rights of Purchasers [§§ 441-443] p 979 (1) In General [§ 441] p 979 (2) Failure to Allot Homestead or Defective Allotment [§ 442] p 980 (3) On Sale Subject to Homestead [§ 443] p 981 C. Proceedings for Enforcement and Protection of Homestead Rights [§§ 444-469] p 981 2. Right of Action for Denial and Infringement of Right and Defenses Thereto [§ 445] 3. Nature of Actions or Proceedings in Which Relief Granted [§§ 446-449] p 982 b. Injunction [§ 447] p 982 c. Bill in Equity to Set Aside as Cloud on Title [§ 448] p 983 d. Motions and Other Summary Remedies [§ 449] p 983 4. Time to Sue and Limitations [§ 450] p 983 5. Parties [ 451] p 983 6. Pleading [§§ 452-457] p 985 a. Right to Homestead [§§ 452-453] p 985 (1) Necessity for Averment [§ 452] p 985 (2) Requisites and Sufficiency [§ 453] p 985 b. Description of Premises [§ 454] p 986 c. Negativing Exceptions or Matters Amounting to Forfeiture [§ 455] p 986 d. Miscellaneous Averments [§ 456] p 987 e. Amendments [§ 457] p 987 7. Issues, Proof, and Variance [§ 458] p 987 8. Evidence [§§ 459-462] p 988 a. Burden of Proof and Presumptions [§§ 459-460] p 988 (2) Value [ 460] p 989 b. Admissibility [§ 461] p 989 c. Weight and Sufficiency [§ 462] p 990 9. Trial [§§ 463-466] p 990 a. In General [§ 463] p 990 b. Questions of Law and Fact [§ 464] p 990 c. Instructions [§ 465] p 991 d. Verdict and Findings [§ 466] p 992 10. Judgment [§ 467] p 992 11. Review [§ 468] p 993 12. Damages [§ 469] p 993 VIII. RIGHTS OF SURVIVING SPOUSE, CHILDREN, OR HEIRS [§§ 470-556] p 994 A. Surviving Wife [§§ 470-489] p 994 1. In General [§ 470] p 994 2. Occupancy by Head of Family [§ 471] p 995 3. Residence within State of Husband or Surviving Wife [§ 472] p 995 4. Indebtedness or Insolvency of Estate [§ 473] p 996 5. Conveyance during Coverture and Abandonment during Husband's Lifetime [ 474] p 996 6. Property in Excess of Certain Amount over Indebtedness [§ 475] p 997 7. Existence of Children [§§ 476-477] p 997 a. In General [§ 476] p 997 b. Existence of Minor Children [§ 477] p 997 8. Validity and Continuance of Marriage Relation [§ 478] p 997 9. Effect of Possession of Other Property [§ 479] p 998 10. Effect of Insanity of Wife [§ 480] p 998 11. Waiver, Release, or Bar [§§ 481-489] p 998 a. In General [§ 481] p 998 b. Antenuptial and Postnuptial Contracts [§ 482] p 998 c. Election to Take under Will [§ 483] p 999 d. Election between Homestead and Distributive Share [§ 484] p 999 e. Election between Homestead and Year's Support [§ 485] p 1000 f. Remarriage [§ 486] p 1001 g. Alienation after Husband's Death [§ 487] p 1001 h. Listing Homestead as Assets of Estate [§ 488] p 1002 For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. i. Miscellaneous [§ 489] p 1002 B. Surviving Children [§§ 490-4972] p 1003 1. In General [§ 490] p 1003 2. What Children Entitled [§ 491] p 1004 3. Extent and Limits of Rights [§§ 492-497] p 1004 a. In General [§ 492] p 1004 b. Affected by Acts of Others [§ 493] p 1005 c. Affected by Their Own Acts [§ 494] p 1007 d. Affected by Collateral Judicial Proceedings [§ 495] p 1007 e. Affected by Curtesy or Dower [§ 496] p 1007 f. Rents and Profits [497] p 1008 4. Enforcement and Protection of Rights [§ 4972] p 1008 C. Surviving Husband [§§ 498-499] p 1009 1. In General [§ 498] p 1009 2. Waiver, Forfeiture, Release, or Estoppel [§ 499] p 1010 D. What Law Governs [§ 500] p 1010 E. Retroactive Operation of Statutes [§ 501] p 1011 F. Precedence of Other Claims [§§ 502-506] 1011 1. Debts of Decedent [§§ 502-504] p 1011 a. Debts Not Enforceable [§ 502] p 1011 b. Debts Enforceable [§§ 503-504] p 1012 (2) Mortgage Liens [§ 504] p 1013 2. Debts of Survivor [§ 505] p 1013 3. Rights of Heirs and Remainderman [§ 506] p 1014 G. Nature of Estate or Interest Transmitted [§§ 507-511] p 1014 1. In General [§ 507] p 1014 2. To Surviving Spouse and Children [§ 508] p 1015 3. To Constituent Member of Family [§ 509] p 1017 4. To Heirs [§ 510] p 1017 5. Incidental Rights [§ 511] p 1019 H. Property Subject to Appropriation, Nature, Amount, and Extent [§§ 512-5172] p 1019 1. Property Subject to Appropriation [§§ 512-514] p 1019 a. In General [§ 512] p 1020 b. Property Used as Family Residence [§ 513] p 1020 c. Property Not Impressed with Homestead Character during Decedent's Lifetime [§ 514] p 1021 2. Nature of Estate, Ownership, or Interest of Decedent [§ 515] p 1021 3. Allowance in Lieu of Homestead [§§ 516-5163] p 1022 a. In General [§ 516] p 1022 b. From Proceeds of Sale of Property [§ 5162] p 1022 c. From Other Lands [§ 516%] p 1023 4. Territorial Extent, Quantity of Interest, and Value [§§ 517-5171⁄2] p 1023 a. In General [§ 517] p 1023 b. Value [ 5172] p 1024 J. Rights as Affected by Administrator's Sale [§ 526] p 1028 K. Proceedings for Selection, Setting Apart, and Protection of Rights [§§ 527-543] p 1028 1. In General [§ 527] p 1028 2. Necessity for Selection and Allotment [§ 528] p 1029 3. Jurisdiction [§ 529] p 1030 4. Proceedings in Which Right Asserted or Protected [§ 530] p 1030 5. Notice [ 531] p 1031 6. Parties [§ 532] p 1031 7. Petition or Application [§ 533] p 1032 8. Contest and Determination of Claim [§ 534] p 1033 9. Order or Decree [§ 535] p 1033 10. Duty to Allot and Method of Allotment [§ 536] p 1034 11. Operation and Effect of Assignment of Homestead [§§ 537-540] p 1034 a. In General [§ 537] p 1034 b. Withdrawing Property from Administration [§ 538] p 1035 L. HOMESTEADS c. Collateral Attack [§ 539] p 1035 d. Adjudication of Title [540] p 1036 12. Vacating and Setting Aside Allotment [§ 541] p 1036 a. Appeal [§ 542] p 1036 b. Certiorari [§ 543] p 1037 Protection of Rights by Redemption from Liens [§ 544] p 1037 1. By Surviving Wife [ 545] p 1037 2. By Surviving Husband [§ 546] p 1038 3. By Surviving Child or Heir [§ 547] p 1039 4. Rights Acquired by Grantee or Purchaser [§ 548] p 1039 N. Partition [§§ 5482-551] p 1039 1. In General [§ 5482] p_1039 2. During Occupancy of Homestead Beneficiary [§ 549] p 1039 4. On Application of Heir or Devisee [§ 551] p 1040 O. Liability of Homestead for Debts of Decedent [§§ 552-555] p 1041 2. After Termination of Homestead [§ 553] p 1042 3. Sale Subject to Homestead Rights [§§ 554-555] p 1042 P. Course of Descent of Homestead [§ 556] p 1043 CROSS REFERENCES Insolvent see Insolvency [22 Cyc 1334]. Wife on divorce see Divorce § 775. Allowance to surviving wife, husband, or children generally see Executors and Administrators §§ 758-874. Antenuptial agreement generally see Husband and Wife. Assets of decedent's estate see Executors and Administrators § 357. Assignment for benefit of creditors, effect 518. of see Assignments for Benefit of Creditors §§ 148, 197, 269, Bankruptcy, effect of see Bankruptcy § 618 et seq. Constitutional law: Class legislation see Constitutional Law § 865. Retrospective operation of statute see Constitutional Self-executing constitutional provision see Constitu- Vested rights, impairment of see Constitutional Law §§ 505, 526, 564, 749. Decedent's debts, sale of homestead to pay see Execu- Defect in vendor's title, homestead as see Vendor and Domicile by operation of law see Domicile § 8. Allotment of homestead see Dower § 378. Executory contract to convey signed by husband alone In general see Exemptions 25 C. J. p 1. Fraudulent conveyance of homestead see Fraudulent Homestead for occupancy during administration see "Homestead" used in a will see Wills [40 Cyc 1531]. [29 C. J.] 781 Insurable interest in homestead see Fire Insurance Negotiable instrument containing waiver of homestead Partition generally see Partition [30 Cyc 186]. Property subject to: Attachment generally see Attachment §§ 350-395. Public lands, homestead in see Public Lands [32 Cyc Receivership on claim of homestead see Receivers [34 Reformation of conveyance see Reformation of Instru- Removal of cloud see Quieting Title [32 Cyc 1322]. Resisting levy on homestead see Obstructing Justice [29 Cyc 1330]. Sheriff's liability as to levy and sale of homestead see Sheriffs and Constables [35 Cyc 1647, 1687, 1695, 1919]. Special assessment, liability of homestead for see Municipal Corporations [28 Cyc 1132]. Tax sale: Divesting claim to homeştead see Taxation [37 Cyc 1474]. Redemption by homesteader see Taxation [37 Cyc Usurious waiver of homestead rights see Usury [39 Waiver of homestead in contract tainted with usury Widow's allowance: Bar to acceptance of homestead see Executors and Resort to homestead for see Executors and Adminis- Widow's quarantine see Executors and Administrators I. DEFINITION [1] A homestead is the dwelling house constituting the family residence, together with the land upon which it is situated and the appurtenances connected therewith.1 The term "homestead" has V. 1. U. S.-In re Owings, 140 Fed. | 125, 134, 45 AmR 654; Gregg v. Bost-kins, 47 Kan. 580, 28 P 606, 27 AmSR 739, 741; Watkins v. Little, 80 Fed. wick, 33 Cal. 220, 227, 91 AmD 637; 309; Bebb 321, 330, 25 CCA 438. Ala.-Jaffrey v. McGough, 88 Ala. 184, 76 Ackley v. Chamberlain, 16 Cal. 181, 344, 18 P 223; Morrissey v. Donohue, 648, 650, 7 S 333; Blum Crowe, 39 Kan. 342, 63 Ala. 235, 238. v. Carter, gous, 4 Cal. 268, 272, 60 AmD 606; AmD 516; Taylor v. Har- 32 Kan. 646, 648, 5 P 27. Ark.-Williams v. Dorris, 31 Ark. Cook v. McChristian, 4 Cal. 23, 26. 23 KyL 1775. Ky.-Garrison v. Penn, 66 SW 14, 466, 468; McKenzie Fla.-Brandils Ark. 155, 158; Tumlinson v. Swin- Oliver v. Snowden, 18 Fla. 823, 838, v. Murphy, 24 172, 176, 22 S 268, 63 V. Perry, 39 Fla. ney, 22 Ark. 400, 403, 76 AmD 432. 43 AmR 338. AmSR 164; Cal.-Keyes V. 322, 324, 34 P 722, 38 AmSR 296; 635, 45 NE 267. Cyrus, 100 Cal. Ill. Smith v. Dennis, 163 Ill. Ham v. Santa Rosa Bank, 62 Cal. Kan.-Linn County Bank v. Hop-Millard, 7 Minn. 513, 82 AmD 112. |